John M. Boehnert: How R.I. broke down barriers to wind power

Development of the nation's first offshore wind farm is under way off Block Island, with Deepwater Wind constructing a project to power 17,000 homes.

Few recognize that it would not have happened but for enlightened environmental regulation by the State of Rhode Island.

Enlightened environmental regulation is an oxymoron, given aggressive federal regulation. When the Environmental Protection Agency’s recent efforts to regulate coal plants can provoke liberal constitutional scholar Laurence Tribe to claim the administration is “burning the Constitution," you know you may be approaching the high tide of regulatory overreach.

This has been going on for years. Recall in the Clinton years the U.S. Fish and Wildlife Service ordered California homeowners threatened with a wildfire not to cut firebreaks, which disturbed soil, in order to try to save their houses, because this would harm the habitat of an endangered rat.

Many who obeyed lost their homes. One cut the firebreak and his house was spared. When asked if he feared prosecution, he replied: “I don’t think they’re that stupid." Today, after years of federal over-regulation, there may be fewer Americans willing to make that bet.

Witness Cape Wind’s efforts since 2001 to build a wind farm off Massachusetts’ coast. It battled opposition from Cape Cod property owners, who did not want to look at windmills from their mansions, and environmentalists, who claim the windmills were effectively a Cuisinart for birds.

With permits in hand, Cape Wind is stalled over disputed power purchase contracts.

Rhode Island took a different tack. Rather than adopt a traditional approach, where developers must prove they would do no harm and justify the location and benefits of their wind farms, while fighting with opponents, as in the Cape Wind process, Rhode Island turned the tables.

The Coastal Resources Management Council commissioned the University of Rhode Island’s ocean experts to develop a sophisticated marine spatial plan for nearly 1,500 square miles in federal and state waters. Its purpose was to determine where to locate wind farms while protecting the environment and fisheries, and not interfering with shipping, commerce, boating, etc.

Government, not the developer, controlled the studies.

Studies encompassed the travel of the right whale, fish distribution, bird migration, and sensitive environmental areas, which were identified and protected. The studies even included the most cost-effective wind farm locations.

Meanwhile, the governor’s office competitively selected a preferred developer who got priority permitting in exchange for economic development commitments benefiting the state.

The Ocean Special Area Management Plan (Ocean SAMP) was implemented with detailed regulations, effectively zoning offshore state waters, similar to zoning land areas.

The state worked closely with federal regulators, who approved the Ocean SAMP’s jurisdiction over state waters. It was the nation’s first federally-approved state ocean zoning plan.

CRMC Executive Director Grover Fugate estimates the Ocean SAMP cut five years from normal permitting for an offshore project. Deepwater Wind got permits approximately two years after applying, in contrast to Cape Wind’s nine years.

Benefiting from expedited permitting and the state’s marine spatial plan, Deepwater Wind reimbursed the state $3.2 million. After all, it would have had to do that work itself, probably pay more for it, and then convince the state it was accurate and sound science. The developer built on state studies with its own studies.

Because the process was fully vetted by a state-convened public stakeholder group with divergent views, it gained wide support, avoiding litigation that dogged the Cape Wind process. Even the fisheries interests, initially opposed, supported the final plan.

Federal regulators may have a lot to learn from Rhode Island. And they should also look at Oregon and Massachusetts. Oregon followed Rhode Island’s lead, using marine spatial planning to facilitate permitting of offshore wave energy facilities. Massachusetts now has its own Ocean Plan and is cooperating with Rhode Island for what may be the second offshore wind farm in the United States.

This demonstrates that environmental regulation need not be the bureaucratic equivalent of the neutron bomb, leaving the infrastructure in place but wiping out the people. Let's hope Washington is paying attention.

John M. Boehnert is a Rhode Island lawyer and author of the book “Zoning the Oceans, The Next Big Step in Coastal Zone Management."

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